HKB
descents, held their lands, and were tied by allegiance to him who was king of England, his heirs and successors, but were under no subjection to English lords and commons.
Heirs and successors of the king, are supposed to be the same persons, and are used as synonymous words in the English law. There is no positive artificial provision made by our laws, or the British constitution for revolutions. All our positive laws suppose that the royal office will descend to the eldest branch of the male line, or in default of that, to the eldest female, &c. forever, and that the succession will not be broken. It is true, that nature, necessity, and the great principles of self-preservation, have often over-ruled the succession. But this was done without any positive instruction of law. Therefore, the grants being by the king, for his heirs and successors, and the tenures being of the king, his heirs and successors, and the preservation being to the king, his heirs, and successors, are so far from proving that we were to be part of an empire, as one state, subject to the supreme authority of the English or British state, and subject to its protection, that they do not so much as prove that we are annexed to the English crown. And all the subtility of the writers on the side of the ministry, has never yet proved, that America is so much as annexed to the crown, much less to the realm. "It is apparent the king acted in his royal capacity, as king of England." This I deny. The laws of England gave him no authority to grant any territory out of the realm. Besides, there is no colour for his thinking that he acted in that capacity, but his using the great seal of England: but if the king is absolute in the affair of the seal, and may make or use any seal that he pleases, his using that seal which had been commonly used in England, is no certain proof that he acted as king of England; for it is plain, he might have used the English seal in the government of Scotland, and in that case it will not be pretended that he would have acted in his royal capacity, as king of England. But his acting as king of England, "necessarily supposes the territory granted to be a part of the English dominions, and holden of the crown of England." Here is the word "dominions," systematically introduced instead of the word "realm." There was no English dominions, but the realm. And I say that America was not any part of the English realm or dominions. And therefore, when the king granted it, he could not act as king of England, by the laws of England. As to the "territory being holden of the crown, there is no such thing in nature or art." Lands are holden according to the original notices of feuds of the natural person of the lord. Holding lands, in feudal language, means no more than the relation between lord and tenant. The reciprocal duties of these are all personal. Homage, fealty, &c. and all other services, are personal to the lord; protection, &c. is personal to the tenant. And therefore no homage, fealty, or other services, can ever be rendered to the body politic, the political capacity, which is not corporated, but only a frame in the mind, an idea. No lands here, or in England, are held of the crown, meaning by it, the political capacity; they are all held of the royal person, the natural person of the king. Holding lands, &c. of the crown, is an impropriety of expression, but it is often used, and when it is, it can have no other sensible meaning than this: that we hold lands of that person, whoever he is, who wears the crown; the law supposes he will be a right, natural heir of the present king forever.